Jose Gubiensio-Ortiz, Petitioner-Appellant, v. Al Kanahele, Warden, Metropolitan Correctional Center, San Diego, California, Respondent-Appellee. United States of America, Plaintiff-Appellant, v. Raul Chavez-Sanchez, Defendant-Appellee., 857 F.2d 1245 (9th Cir. 1988)

Appeal from the United States District Court for the Southern District of California.

Alan B. Morrison, Public Citizen Litigation Group, Washington, D.C., and Judy Clarke, Federal Defenders of San Diego, Inc., San Diego, Cal., for the petitioner-appellant in No. 88-5848 and the defendant-appellee in No. 88-5109.

Douglas Letter and Gregory C. Sisk, U.S. Dept. of Justice, Washington, D.C., Roger W. Haines, Jr., Asst. U.S. Atty., San Diego, Cal., for the respondent-appellee in No. 88-5848 and the plaintiff-appellant in No. 88-5109.

Paul M. Bator, Mayer, Brown & Platt, Chicago, Ill., and John R. Steer, Gen. Counsel, U.S. Sentencing Com'n, Washington, D.C., for the U.S. Sentencing Com'n as amicus curiae.

Before WIGGINS, BRUNETTI and KOZINSKI, Circuit Judges.

KOZINSKI, Circuit Judge.

We consider the constitutionality of the Sentencing Reform Act of 1984 (SRA), Pub.L. No. 98-473, tit. II, ch. II, 98 Stat. 1987 (codified as amended at 18 U.S.C. Secs . 3551-3742 and 28 U.S.C. Secs . 991-998).

Facts

A. In 1984, Congress consummated a decade-long effort to revolutionize federal sentencing law by creating the United States Sentencing Commission as "an independent commission in the judicial branch of the United States." 28 U.S.C. Sec . 991(a) (Supp. IV 1986). Congress charged the Commission with eliminating unwarranted sentencing disparities among "defendants with similar records who have been found guilty of similar criminal conduct while maintaining sufficient flexibility to permit individualized sentences." 28 U.S.C. Sec . 991(b)(1)(B) (Supp. IV 1986). In an effort to establish this more determinate system of sentencing, the Act introduces three major changes from prior law: (1) It authorizes the Commission to promulgate "guidelines ... for use of a sentencing court in determining the sentence to be imposed in a criminal case," along with policy statements to facilitate implementation of the guidelines, 28 U.S.C. Sec . 994(a) (Supp. IV 1986); (2) it prospectively abolishes parole, see SRA Sec. 235(b), 98 Stat. at 2032-33; and (3) it substantially curtails the availability to prisoners of credits toward their sentence for good time served, 18 U.S.C. Sec . 3624(b) (Supp. IV 1986).

The Commission was given considerable guidance as to the promulgation of the guidelines. Congress specified, for example, that the guidelines be in the form of a matrix with one axis describing the characteristics of the offense and the other the offender's character and criminal history. The Commission was directed to establish a maximum "sentencing range" of six months or 25 percent of the minimum sentence, whichever is greater, for "each category of offense involving each category of defendant." 28 U.S.C. Sec . 994(a)(1), (b) (Supp. IV 1986). To guide the Commission in filling out the matrix, Congress listed seven offense characteristics and eleven offender characteristics, but left it to the Commission to determine their relevance, if any. See 28 U.S.C. Sec . 994(c)-(e) (Supp. IV 1986). Congress also directed the Commission to construct the sentencing matrix in light of four overarching considerations: deterrence, public protection, rehabilitation and just punishment. 28 U.S.C. Sec . 991(b)(1)(A), (2) (Supp. IV 1986); 18 U.S.C. Sec . 3553(a)(2) (Supp. IV 1986). Finally, Congress provided that the race, sex, national origin, creed and socioeconomic status of the offender should not be part of the sentencing matrix. 28 U.S.C. Sec . 994(d) (Supp. IV 1986).

The guidelines are binding, not merely hortatory. In imposing sentence, judges may deviate from the matrix only if there are aggravating or mitigating factors that the Commission did not adequately consider in formulating the guidelines and if they state their reasons on the record. 18 U.S.C. Sec . 3553(b), (c)(2) (Supp. IV 1986). Both the defendant and the government may appeal sentencing decisions on the ground that they are inconsistent with the guidelines. 18 U.S.C. Sec . 3742 (Supp. IV 1986). The Commission is empowered to monitor the operation of the guidelines and supplement or amend them, and intends to do so extensively. 28 U.S.C. Secs . 994(o)-(r), 995(a) (Supp. IV 1986); see U.S. Sentencing Commission, Preliminary Observations of the Commission on Commissioner Robinson's Dissent 4, 6-7 (May 1, 1987).

Under the Act, the President appoints the Commission's seven members, including its chairman, subject to Senate confirmation. 28 U.S.C. Sec . 991(a). The Act provides that three of the members must be federal judges whom the President may select after considering a list of six submitted by the Judicial Conference of the United States, and who may serve without resigning from the bench. Id.; 28 U.S.C. Sec . 992(c) (Supp. IV 1986). In addition, the Attorney General may appoint a representative to serve as an ex officio, nonvoting member of the Commission; during the Commission's first term, the Chairman of the United States Parole Commission or his designee serves as a second ex officio, nonvoting member. 28 U.S.C. Sec . 991(a); SRA Sec. 235(b)(5), 98 Stat. at 2033. Commissioners, whose initial terms vary, may be reappointed by the President to serve two full six-year terms. 28 U.S.C. Sec . 992(a)-(b) (Supp. IV 1986). The President may remove Commission members "for neglect of duty or malfeasance in office or for other good cause." 28 U.S.C. 991(a).

The President proceeded to appoint the seven Commissioners, including three sitting federal judges. To chair the Commission he chose Judge William W. Wilkins, then of the District Court for the District of South Carolina and later elevated to the Court of Appeals for the Fourth Circuit. Joining Judge Wilkins were Judge Stephen Breyer of the Court of Appeals for the First Circuit and Senior Judge George MacKinnon of the Court of Appeals for the District of Columbia Circuit. By a vote of six to one, with all three judges in the majority, the Commission adopted guidelines grouping offenses into 43 categories, and defendants into six categories. As provided by the Act, the guidelines were submitted to Congress. SRA Sec. 235(a)(1)(B)(ii)(I), 98 Stat. at 2032. Congress having taken no action for six months, the guidelines became effective as to crimes committed on or after November 1, 1987. SRA Sec. 235(a)(1)(B)(ii)(III), 98 Stat. at 2032.

B. Jose Gubiensio-Ortiz was charged with aiding and abetting the illegal entry of an alien. 18 U.S.C. Sec . 2 (1982); 8 U.S.C. Sec . 1325 (Supp. IV 1986). The crime was committed on January 26, 1988. Gubiensio pleaded guilty two days later and was sentenced to six months in prison. On March 18, 1988, Gubiensio filed a petition for habeas corpus challenging the Bureau of Prisons' refusal to award him good time credits under 18 U.S.C. Secs . 4161-4162 (1982), which sections were repealed when the guidelines went into effect. Gubiensio argued that he was entitled to good time credits because the Act is unconstitutional and therefore did not effectively repeal the prior law. The petition was heard by District Judge Brewster, who had previously ruled that the guidelines were unconstitutional. See United States v. Arnold, 678 F.Supp. 1463, 1466-72 (S.D.Cal.1988). In Gubiensio's case, Judge Brewster ruled that while the Act was unconstitutional insofar as it authorized the guidelines, the provisions pertaining to good time credits were severable. He therefore denied the petition.

Raul Chavez-Sanchez was indicted on five counts of transportation of illegal aliens, 8 U.S.C. Sec . 1324(a)(1)(B) (Supp. IV 1986), illegal entry into the United States, 8 U.S.C. Sec . 1325 (Supp. IV 1986), and making false statements to a federal officer, 18 U.S.C. Sec . 1001 (1982). Because the crimes were committed on or about November 19, 1987, Chavez was similarly subject to the Act. Chavez pleaded guilty to illegal entry before District Judge Irving, who subsequently declared the Act unconstitutional, incorporating Judge Brewster's opinion in Arnold. Chavez was sentenced to 18 months in prison and a $50 fine in accordance with pre-SRA law. While the sentence exceeded the maximum permitted under the applicable guideline, the court did not impose a period of supervised release following imprisonment as the guideline would have required.

Gubiensio appeals in No. 88-5848 the denial of his petition for habeas corpus on the basis that the good time credits provision of the SRA is not severable. The United States appeals in No. 88-5109 on the ground that Chavez's sentence was imposed "in violation of law" or "as a result of an incorrect application of the sentencing guidelines." 18 U.S.C. Sec . 3742(b)(1)-(2) (Supp. IV 1986). We expedited the appeals in both cases and consolidated them for decision.

Contentions of the Parties and Amicus Curiae

Before us are not only the United States and the criminal defendants but also the United States Sentencing Commission as amicus curiae. Each of the parties approaches the problem from a somewhat different perspective and together they have done a remarkably competent and thorough job of briefing all aspects of this difficult case.

Gubiensio and Chavez make a series of arguments in support of their claim that the Act is unconstitutional. Most fundamentally, they contend that Congress may not delegate so broadly its power to fix the punishments for crimes against the United States. Defendants are also much troubled by the nature and makeup of the Commission. They contend that the Commission is a judicial body, and argue that Congress may not delegate to the judiciary the authority to issue binding substantive regulations. Furthermore, allowing the President to make appointments from among officers of the judicial branch and then remove those officers violates the separation of powers doctrine. Gubiensio alone argues that once the Act is struck down, the good time credits provision cannot be saved by severance from the statutory scheme of which it is an integral part.

The United States agrees that the Commission is performing executive functions that may not properly be assigned to a body within the judicial branch. The government argues that we should construe the Act as constitutional by holding that the Commission is in fact within the executive branch. If we deem the Act unconstitutional because of the makeup of the Commission, the United States argues that the provisions with respect to good time credits operate independently and should be saved.

Amicus urges us not to get entangled in metaphysical disputes about where precisely the Commission resides within our tripartite government. It urges us to take a sensible approach, unencumbered by formalistic hairsplitting. In the Commission's view, what Congress has done makes common sense which goes a long way toward making constitutional sense. If we are nevertheless troubled about the nature of the Commission, amicus suggests that we treat it as something akin to an independent regulatory agency, not unlike the Federal Trade Commission or the Securities and Exchange Commission. Amicus takes no sides in the dispute between Gubiensio and the government on the question of the severability of the good time credits provision.

Discussion

* Before turning to the merits, we first consider our jurisdiction to hear these appeals. While we generally have jurisdiction over appeals from final orders of the district courts, we do not have jurisdiction "where a direct review may be had in the Supreme Court." 28 U.S.C. Sec . 1291 (1982). Congress has provided that "[a]ny party may appeal to the Supreme Court from an interlocutory or final judgment, decree of order of any court of the United States ... holding an Act of Congress unconstitutional in any civil action, suit, or proceeding to which the United States ... or any officer or employee thereof, as such officer or employee, is a party." 28 U.S.C. Sec . 1252 (1982). The Supreme Court has held that section 1252 is mandatory and that the courts of appeals may not exercise jurisdiction in cases covered by it. Donovan v. Richland County Ass'n for Retarded Citizens, 454 U.S. 389, 390, 102 S.Ct. 713, 714, 70 L.Ed.2d 570 (1982) (per curiam); see also United States v. Henderson, 844 F.2d 685, 687 (9th Cir.1988), petition for rehearing filed (June 10, 1988).

In Chavez's criminal case, the district court struck down the guidelines as unconstitutional. Because section 1252 provides for direct appeal to the Supreme Court only in civil cases, it does not, by its terms, apply to the government's appeal in the criminal action.1 Gubiensio, on the other hand, appeals from the denial of habeas corpus. It is well established that such an appeal constitutes a "civil action, suit or proceeding" within the meaning of section 1252. Parker v. Levy, 417 U.S. 733, 742 & n. 10, 94 S.Ct. 2547, 2555 & n. 10, 41 L.Ed.2d 439 (1974); Reid v. Covert, 351 U.S. 487, 489, 76 S.Ct. 880, 881, 100 L.Ed. 1352 (1956), rev'd on other grounds on reh'g, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957); see Henderson, 844 F.2d at 687-88 (section 1252 applies "to nominally civil actions attacking the constitutionality of criminal prosecutions or convictions").

Nonetheless, section 1252 does not divest us of jurisdiction over Gubiensio's case. His appeal presents only the issue of severability, "a question of legislative intent," not the implied judgment that the guidelines are unconstitutional. Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 107 S.Ct. 1476, 1480 n. 5, 94 L.Ed.2d 661 (1987). Direct appeal to the Supreme Court does not lie where the "party does not contest the holding of statutory unconstitutionality, and seeks review only of another portion of the court's judgment." Heckler v. Edwards, 465 U.S. 870, 885, 104 S.Ct. 1532, 1541, 79 L.Ed.2d 878 (1984). "Edwards teaches that the decisions Congress targeted for appeal under Sec. 1252 were those which involved the exercise of judicial power to impair the enforcement of an Act of Congress on constitutional grounds, and that it was the constitutional question that Congress wished [the] Court to decide." Walters v. National Ass'n of Radiation Survivors, 473 U.S. 305, 318, 105 S.Ct. 3180, 3188, 87 L.Ed.2d 220 (1985).

The district court in Gubiensio applied the Act's good time credit provisions as written by Congress. Its earlier ruling in Arnold that the Act was unconstitutional affected the court's analysis but not the final outcome; the court would have reached precisely the same result had it determined that the Act was entirely constitutional. We therefore have jurisdiction over the appeals in both of these cases.

II

We start by observing that the Act creates a statutory scheme that differs in material respects from anything that has gone before in our two centuries of constitutional history: The Commission is a body that must include three sitting federal judges, yet it is given very broad powers to issue binding regulations affecting the personal liberty of tens of thousands of individuals convicted of federal crimes each year; the President, head of the executive branch, may remove or reappoint all commissioners, including the judges; the Attorney General, an officer of the executive branch, or his delegate, serves on the Commission in a nonvoting capacity. The Act thus calls for an unprecedented sharing of power among the three branches of our government. This is not necessarily bad. It is the great strength of our Constitution that it allows the political branches of government considerable leeway in adapting to new problems or circumstances.

At the same time, however, novel arrangements, particularly those that call for the exercise of unprecedented powers by officers of one or more branches, deserve very careful scrutiny. In departing from the tried and true, Congress has occasionally crossed the line between the permissible and the impermissible. See, e.g., Bowsher v. Synar, 478 U.S. 714, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986) (congressional removal of officer performing executive functions); INS v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983) (legislative veto); Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982) (assignment of Article III judicial power to non-Article III judges); Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (congressional appointment of Federal Election Commissioners).

The test is not whether the arrangement is wise or efficient, nor even whether it makes particular sense to us; those are all questions to be resolved by the political branches when they bring the law into being. We must consider only whether the structure created by the Act upsets the balance of power established by the Constitution among the legislative, executive and judicial branches of government. Specifically, we must determine whether the arrangement impermissibly grants one branch the authority to exercise powers properly belonging to another branch, Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587-89, 72 S.Ct. 863, 866-67, 96 L.Ed. 1153 (1952); Chadha, 462 U.S. at 963, 103 S.Ct. at 2790 (Powell, J., concurring), or whether it "prevents [the affected branch] from accomplishing its constitutionally assigned functions" in the absence of "an overriding need to promote objectives within the constitutional authority of Congress." Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 443, 97 S.Ct. 2777, 2790, 53 L.Ed.2d 867 (1977).

It is to this inquiry we now turn. We begin our analysis by considering whether federal judges serving as commissioners may constitutionally perform the rulemaking functions Congress has assigned to them. See Part II.A., at 13-35 infra. We then consider whether the Act's requirement that judges serve on the Commission impermissibly interferes with the central function of the judiciary, resolving cases and controversies. See Part II.B., at 36-50 infra. Finally, we consider whether the provisions pertaining to good time credits are severable from the rest of the statutory scheme. See Part III, at 51-56 infra.2

A. ASSIGNMENT OF IMPERMISSIBLE FUNCTIONS

The Constitution grants the federal judiciary only "the judicial Power of the United States," and restricts its exercise to "Cases" or "Controversies." U.S. Const. art. III, Secs. 1, 2; see Morrison v. Olson, --- U.S. ----, 108 S.Ct. 2597, 2611-12, 101 L.Ed.2d 569 (1988); Muskrat v. United States, 219 U.S. 346, 356, 31 S.Ct. 250, 253, 55 L.Ed. 246 (1911). The Supreme Court has consequently defined the judiciary's purpose in terms of "the duty of interpreting and applying [laws] in cases properly brought before the courts," Massachusetts v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 601, 67 L.Ed. 1078 (1923), and "the right to determine actual controversies arising between adverse litigants, duly instituted in courts of proper jurisdiction," Muskrat, 219 U.S. at 361, 31 S.Ct. at 255.

The case or controversy requirement "defines the 'role assigned to the judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government.' " United States Parole Comm'n v. Geraghty, 445 U.S. 388, 396, 100 S.Ct. 1202, 1208, 63 L.Ed.2d 479 (1980) (quoting Flast v. Cohen, 392 U.S. 83, 95, 88 S.Ct. 1942, 1950, 20 L.Ed.2d 947 (1968)); see also Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984) (case or controversy requirement "defines with respect to the Judicial Branch the idea of separation of powers on which the Federal Government is founded"). Therefore, "[a]s a general rule, [the Court has] broadly stated that 'executive or administrative duties of a nonjudicial nature may not be imposed on judges holding office under Art. III of the Constitution.' " Morrison v. Olson, --- U.S. ----, 108 S.Ct. 2597, 2612, 101 L.Ed.2d 569 (1988) (quoting Buckley v. Valeo, 424 U.S. 1, 123, 96 S.Ct. 612, 684, 46 L.Ed.2d 659 (1976) (citing United States v. Ferreira, 54 U.S. (13 How.) 40, 14 L.Ed. 40 (1852); Hayburn's Case, 2 U.S. (2 Dall.) 409 (1792))); see also Glidden Co. v. Zdanok, 370 U.S. 530, 579-83, 82 S.Ct. 1459, 1487-90, 8 L.Ed.2d 671 (1962) (plurality opinion of Harlan, J.) (congressional reference jurisdiction); United Steelworkers of Am. v. United States, 361 U.S. 39, 43, 80 S.Ct. 1, 4, 4 L.Ed.2d 12 (1959) (per curiam); Federal Radio Comm'n v. General Electric Co., 281 U.S. 464 , 469, 50 S.Ct. 389, 390, 74 L.Ed. 969 (1930) (refusing to "exercise or participate in the exercise of functions which are essentially legislative or administrative"); Keller v. Potomac Elec. Power Co., 261 U.S. 428, 444, 43 S.Ct. 445, 449, 67 L.Ed. 731 (1923) (refusing to review administrative ratemaking determinations because Congress could not confer on the Supreme Court "legislative or administrative jurisdiction ... either directly or by appeal"). As the Court recently reiterated, this "broad prohibition ... maintain[s] the separation between the judiciary and the other branches of the Federal Government by ensuring that judges do not encroach upon executive or legislative authority or undertake tasks that are more properly accomplished by those branches." Morrison, 108 S.Ct. at 2613.3

It is true that federal judges have occasionally been granted authority over matters that are not strictly cases or controversies. Nonetheless, the exceptions, and there are few, have heretofore been carefully circumscribed; they generally involve matters directly affecting the efficient performance of judicial functions. See Chandler v. Judicial Council of the Tenth Circuit, 398 U.S. 74, 84-85, 90 S.Ct. 1648, 1653-54, 26 L.Ed.2d 100 (1970) (dicta); id. at 111, 90 S.Ct. at 1667 (Harlan, J., concurring) ("reasonably ancillary to the primary, dispute-deciding function of the courts"); see generally Note, Constitutional Infirmities, 96 Yale L.J. at 1380-81 & n. 135. For example, the Judicial Conference of the United States is charged with "promot[ing] uniformity of management procedures and the expeditious conduct of court business," in part by "study[ing] ... the operation and effect of the general rules of practice and procedure" and recommending changes "to promote simplicity in procedure, fairness in administration, the just determination of litigation, and the elimination of unjustifiable expense and delay." 28 U.S.C. Sec . 331 (1982 & Supp. IV 1986); see also id. Secs. 332-333 (1982 & Supp. IV 1986) (circuit judicial councils and conferences); id. Secs. 620-628 (1982 & Supp. IV 1986) (establishing Federal Judicial Center to study improvements in judicial administration). Similarly, the Administrative Office of the United States Courts, overseen by the Chief Justice, handles the administrative and personnel matters of the courts, matters essential to the effective and efficient operation of the judicial system. See id. Sec. 604 (1982 & Supp. IV 1986).

Aside from these ministerial duties, the judiciary has been given authority to police itself and those who appear before it. See In re Certain Complaints Under Investigation (Williams v. Mercer), 783 F.2d 1488, 1505 (11th Cir.) (upholding statute authorizing judicial council to investigate improper conduct by federal judges as conferring duties "ancillary to the administration of the courts"), cert. denied, 477 U.S. 904 , 106 S.Ct. 3273, 91 L.Ed.2d 563 (1986); 28 U.S.C. Secs . 372 (1982 & Supp. IV 1986). But see Hastings v. Judicial Conference of the United States, 770 F.2d 1093, 1105-09 (D.C.Cir.1985) (Edwards, J., concurring) (expressing doubts as to the constitutionality of judicial council because "the judiciary's inherent powers of self-regulation do not extend beyond purely administrative details"), cert. denied, 477 U.S. 904 , 106 S.Ct. 3273, 91 L.Ed.2d 563 (1986). Similarly, the district courts' inherent authority to appoint special prosecutors in cases of contempt has been upheld on the ground that "[t]he ability to punish disobedience to judicial orders is regarded as essential in ensuring that the Judiciary has a means to vindicate its own authority without complete dependence on other branches." Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 107 S.Ct. 2124, 2131, 95 L.Ed.2d 740 (1987); see also Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 450, 31 S.Ct. 492, 501, 55 L.Ed. 797 (1911) ("the power of courts to punish for contempts is a necessary and integral part of the independence of the judiciary, and is absolutely essential to the performance of the duties imposed on them by law"). In sum, members of the judicial branch may undertake administrative duties relating to "matters affecting the management and reputation of the judiciary itself." In re Certain Complaints, 783 F.2d at 1504.

Finally, the judiciary has been granted authority to promulgate rules of procedure for the conduct of business within the courts. See 28 U.S.C. Sec . 2071 (1982). This authority has traditionally been limited so that the rules promulgated govern only matters related to litigation, not "the primary conduct and affairs of ... citizens." Hanna v. Plumer, 380 U.S. 460, 476, 85 S.Ct. 1136, 1146, 14 L.Ed.2d 8 (1965) (Harlan, J., concurring). For example, Congress limited the Supreme Court's power to promulgate rules of civil and appellate procedure to "the forms of process, writs, pleadings, and motions, and the practice and procedure of the ... courts." 28 U.S.C. Sec . 2072 (1982); see also 18 U.S.C. Secs . 3771-3772 (1982 & Supp. IV 1986) (authorizing "rules of pleading, practice, and procedure" for criminal cases). Congress further provided that "[s]uch rules shall not abridge, enlarge or modify any substantive right." 28 U.S.C. Sec . 2072. In Sibbach v. Wilson & Co., 312 U.S. 1, 61 S.Ct. 422, 85 L.Ed. 479 (1941), the Court upheld various federal rules issued pursuant to the Rules Enabling Act, noting that the delegation of powers was "purposely restricted ... to matters of pleading and court practice and procedure" in order to protect the authority of the states to "declare the substantive ... law." Id. at 10, 61 S.Ct. at 424. The Court concluded: "The test must be whether a rule really regulates procedure,--the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for disregard or infraction of them." Id. at 14. While the decision in Sibbach rested primarily on statutory grounds, it nonetheless demarcates the traditional limits of congressional delegation to the judiciary: It has never before been thought appropriate to grant judges the power to issue substantive rules.

The distinction between rules of procedure and substantive regulations affecting primary conduct is illustrated by the adoption of the Federal Rules of Evidence. After the Supreme Court promulgated evidence rules in 1972, it submitted them to Congress pursuant to 28 U.S.C. Sec . 2072, where substantial controversy arose over the rules pertaining to privileges. Unlike other rules of evidence, rules of privilege "are not designed or intended to facilitate the fact-finding process or to safeguard its integrity," but rather are intended to further public policies and protect primary conduct extrinsic to the judicial process. McCormick on Evidence Sec. 72, at 171 (3d ed. 1984). During the congressional debates over the rules, some legislators "pointed out that the rules of privilege were not simply lawyers' technicalities, but affected the rights of individual citizens." 23 C. Wright & K. Graham, Federal Practice and Procedure Sec. 5421, at 653 (1980).4 Others suggested that rules of privilege may in fact be substantive, and therefore beyond the rulemaking power of the courts.5

Congress eventually deleted the Supreme Court's proposed rules and substituted current Rule 501, under which privileges are governed either by common law principles or by state law. It then took the further step of permanently constraining judicial authority in this area by providing that, while the Supreme Court may generally amend the Federal Rules of Evidence subject only to a legislative veto, "[a]ny ... amendment creating, abolishing, or modifying a privilege shall have no force or effect unless it shall be approved by act of Congress." 28 U.S.C. Sec . 2076 (1982). This provision was added to the House bill by an amendment introduced by Representative Holtzman, who argued that because rules of privilege "involve extraordinarily important social objectives" and "are truly legislative in nature," 120 Cong.Rec. 2391 (1974), judicial promulgation of such rules was unconstitutional: "The Supreme Court is not given the power under Article III of the Constitution to legislate rules on substantive matters. It can pass such judgments only in the context of a particular case or controversy." H.R.Rep. No. 650, 93d Cong., 1st Sess. (1973), reprinted in 1974 U.S. Code Cong. & Admin.News 7051, 7075, 7098. This episode does not, of course, establish that Congress is precluded from delegating substantive rulemaking authority to the courts. It does demonstrate, however, a strong tradition of separating the judiciary from substantive rulemaking.

The Commission does not seriously dispute these propositions. In fact, it concedes that "Congress could not delegate to a group of judges the task of promulgating binding antitrust guidelines through rulemaking." Amicus Brief at 38. Nevertheless, it argues that the sentencing guidelines are a proper exercise of judicial power, being mere procedural rules (like the rules of civil and criminal procedure) and not substantive regulations. We cannot agree. As the Supreme Court noted in Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 1285, 2 L.Ed.2d 1405 (1958), such matters as "the proper apportionment of punishment ... are peculiarly questions of legislative policy." In passing the Act, Congress has effectively delegated that legislative policymaking function to the Commission. While the line between substance and procedure is fine and not easily discernible in close cases, this is not a close case. Reason and authority point squarely to the conclusion that the Commission is assigned the function of promulgating substantive rules and policies governing primary conduct and having the force and effect of law, tasks that only the legislative or executive branches, not the judicial branch, may constitutionally perform.

We note first that the term "guidelines" is something of a misnomer. The Commission's work is not intended merely to inform or advise judges as to how they should go about deciding what punishment to impose. Cf. 28 U.S.C. Sec . 334 (1982) (authorizing institutes and joint councils under the Judicial Conference to study and formulate standards and objectives for sentencing). Rather, the guidelines set relatively narrow ranges for the imposition of punishment on any particular offender for any particular offense, reflecting the substantive policy choices made by the Commission. If the district judge errs in the application of the matrix, he is subject to reversal on appeal, see, e.g., United States v. King, 849 F.2d 1259 (9th Cir.1987) (vacating sentence on basis of guideline's "clear statutory language"); even if he applies the matrix correctly but wants to impose a sentence outside the recommended sentencing range, he may do so only for narrowly specified reasons that he must document on the record.6 See 18 U.S.C. Sec . 3553(b) (permitting departure from guidelines only where Commission did not adequately consider particular factor); U.S. Sentencing Commission, Guidelines Manual 1.6 (Oct. 1987) (Commission may prevent use of factor as ground for departure by specifying that Commission had adequately considered it) [hereinafter Sentencing Guidelines Manual]; cf. Miller v. Florida, --- U.S. ----, 107 S.Ct. 2446, 2453, 96 L.Ed.2d 351 (1987) (rejecting argument that similar state guidelines "simply provide flexible 'guideposts' for use in the exercise of discretion" because "they create a high hurdle that must be cleared before discretion can be exercised").

The substantive and policy-oriented nature of the Commission's mission is reflected in its statutory mandate, which is to develop guidelines that will

provide certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct while maintaining sufficient flexibility to permit individualized sentences when warranted by mitigating or aggravating factors not taken into account in the establishment of the general sentencing practices.

28 U.S.C. Sec . 991(b)(1)(B) (emphasis added). Congress also directed the Commission to construct the guidelines so as to promote deterrence, public protection, rehabilitation and just punishment. 28 U.S.C. Sec . 991(b)(1)(A); 18 U.S.C. Sec . 3553(a)(2). In implementing these statutory directives, the Commission had to make a variety of complex determinations that required the exercise of important policy judgments. What, for example, separates unwarranted sentencing disparities from ones that are warranted? What factors are relevant in determining whether the records of two individuals with wholly different backgrounds are similar or dissimilar for purposes of sentencing? What is the proper balance between deterrence and rehabilitation? Most fundamentally, how does one determine whether vastly different criminal conduct is similar or dissimilar for purposes of the punishment to be imposed?

These questions do, of course, have to be answered by any rational sentencing scheme. But, in answering them, the Commission must draw upon judgments reflecting philosophies of criminal justice; it must make decisions, independent of particular cases, about the relative importance of such considerations as the "circumstances under which the offense was committed," the "community view of the gravity of the offense," and the "deterrent effect a particular sentence may have on the commission of the offense by others." 28 U.S.C. Sec . 994(c)(2), (4), (6) (Supp. IV 1986). These are substantive decisions, fundamentally different from those governing the time for filing responsive pleadings or the extent of allowable discovery.7

True to its mission, the Commission proceeded to draw precisely the type of fine distinctions Congress entrusted to it. Thus, the guidelines provide equivalent punishments for such disparate offenses as shipping 50 weapons to a prohibited person and embezzling $150 from an employee pension plan; reckless homicide and transmitting wagering information; abusive sexual contact that puts a child in fear and unlawfully entering or remaining in the United States; drug trafficking and violation of the Wild Free-Roaming Horses and Burros Act; aggravated assault and smuggling $11,000 worth of fish. Dissenting View of Commissioner Paul H. Robinson on the Promulgation of Sentencing Guidelines by the United States Sentencing Commission 6-7 & n. 27 (May 1, 1987).

Nor were the Commission's judgments limited to individualized decisions as to particular crimes. It made the policy judgment that the sentencing range for such white-collar crimes as public corruption, tax evasion and antitrust violations needed to be increased because it deemed these offenses more serious than judges seemed to have found them when imposing individual sentences. See, e.g., Sentencing Guidelines Manual at 2.31 (Oct. 1987) ("current sentencing practices do not adequately reflect the seriousness of public corruption offenses"). In making this judgment, the Commission was perforce implementing its own understanding of public mores and values. See id. at 1.4 (decisions were "policy-oriented departures" from previous practice).

The Commission was also charged with making fundamental choices about the nature of penalties. For example, while Congress set outer limits on the length of probation, it delegated to the Commission the authority to decide when and where probation would be allowed. The Commission ultimately cut back sharply on the availability of probation, believing that more convicted criminals should serve some prison time. See id. at 1.8-1.9. Similarly, it decided that all non-indigent defendants must pay fines in the amounts provided by the schedule it promulgated. See Sentencing Guidelines Manual at 5.18 (Jan. 15, 1988) (Sec. 5E4.2(a)); see also U.S. Sentencing Commission, Preliminary Draft of Sentencing Guidelines 157-61 (Sept. 1986) (discussing debate over approach to fines).

Perhaps the most striking example of a policy choice made by the Commission was its decision to abstain from promulgating guidelines for the imposition of the death penalty for capital crimes. Since Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the absence of adequate statutory standards has been thought to preclude the imposition of the death penalty for federal crimes even though various federal statutes still provide for such punishment. See, e.g., United States v. Harper, 729 F.2d 1216 (9th Cir.1984) (Espionage Act). For many years, Congress has wrestled with the problem of whether and how to reinstate capital punishment, reaching consensus only as to two offenses. See 10 U.S.C. Sec . 906a (Supp. IV 1986) (espionage by military personnel); 49 U.S.C.A.App. Sec. 1472(i)(1)(B), (n)(1)(B) (West Supp.1988) (aircraft piracy). Against this background, the Justice Department advised the Commission that it had the authority to establish guidelines and procedures for imposing the death penalty for a broad range of criminal offenses, and encouraged the Commission to do so. See Memorandum from Charles J. Cooper, Assistant Attorney General, Office of Legal Counsel, to Judge William W. Wilkins, Jr., Chairman of the U.S. Sentencing Commission, at 26-29 (Jan. 8, 1987) (Excerpt of Clerk's Record (ER) at 64-67); New York Times, Feb. 18, 1987, at A17 col. 1 (remarks of Assistant Attorney General William Weld). Members of Congress expressed contrary views. See, e.g., Washington Post, Mar. 11, 1987, at A17 ("Senate Judiciary Committee Chairman Joseph R. Biden Jr. ... warned last week that the commission would be 'dead' if it voted to revive the death penalty"); New York Times, Feb. 18, 1987, at A17 col. 1 (remarks of Senator Kennedy that it was "contemptible" for the Justice Department to encourage the Commission "to slip the death penalty through the back door").

By a 4-3 vote, the Commission decided not to include the death penalty in its guidelines, apparently because it feared that public controversy over the death penalty might lead Congress to block implementation of the guidelines. Judge Wilkins was quite candid as to his reasons: "I strongly support capital punishment, but I also recognize political realities." National Law Journal, Mar. 23, 1987, at 5; see also id. (comment of Judge MacKinnon that "[i]t is an inopportune time politically" to consider the death penalty). The controversy attracted substantial public attention, as it well should have, given the sensitive nature of the subject matter and the strong public sentiments aroused by the death penalty issue. Caught between executive and legislative branches at loggerheads over the subject, the Commission declined to exercise part of its authority in order to safeguard the major portion of its work. There is nothing inherently wrong with this, of course; it is an entirely understandable response to political pressures by a political body. But it vividly points up that the Commission's work was indeed substantive and political, not procedural and impartial.

The Commission argues that the types of choices the Commission must make are no different from those made by the judiciary in promulgating rules of procedure because the guidelines limit only the discretion of judges in passing sentence; they affect the conduct of individuals in the real world only peripherally and indirectly. This is far too myopic a view. What happens in litigation may occasionally have an incidental effect on primary conduct. Yet we can say with some assurance that people would not change their day-to-day behavior if the time to respond to motions under Fed.R.App.P. 27(a) were ten days rather than seven, or if pleadings had to be filed on paper 14 inches long rather than 11.

The sentencing guidelines are quite different. Across-the-board increases in the quantum of punishment imposed for certain categories of crime will very likely diminish the propensity of people to engage in that or closely related conduct. Thus, increasing the punishment for tax evasion will, presumably, deter tax evasion and make more cautious those individuals who are wont to cut corners in preparing their returns. That, of course, was the assumption that animated the Commission in increasing penalties for this and other white-collar crimes. See Sentencing Guidelines Manual at 1.9 (Oct. 1987) ("[t]he Commission's view is that the definite prospect of prison ... will act as a significant deterrent to many of these crimes"). It seems inconsistent for the Commission now to claim that the guidelines have no effect on the real world because they govern only the actions of judges and have little or no effect on primary conduct.

In addition to common sense and observation of the Commission's actual conduct, we find support for our conclusion that the sentencing guidelines are substantive in Miller v. Florida, --- U.S. ----, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987). Petitioner there challenged a revision to a state law remarkably similar to the Commission's sentencing guidelines on the ground that the revision violated the ex post facto clause. While not changing the statutory range of permissible punishments for any crime, the revised Florida guidelines increased the presumptive sentence range for the crime of which Miller was convicted. Id. at 2452. In determining the applicability of the ex post facto clause, the Court in Miller had to first decide whether the guidelines were merely procedural, in which case the clause would not apply, or substantive, in which case it would. See id. at 2452-53. Even though the Florida scheme permitted sentencing judges to depart from the guidelines if they found by clear and convincing evidence that the guideline sentences were inappropriate, the Court had no difficulty concluding that the change in sentencing law was substantive. The Court noted that "[a]lthough the distinction between substance and procedure might sometimes prove elusive, here the change at issue appears to have little about it that could be deemed procedural. ... [T]he amendment was intended to, and did, increase the 'quantum of punishment' for [certain] crimes." Id. at 2453. Precisely the same can be said about the Commission's guidelines. See p. 1255 supra.

The Commission has emphasized how efficient and sensible it was for Congress to bypass the cumbersome legislative process and entrust the power to set sentencing guidelines to an independent body within the judicial branch, staffed in part by federal judges who have expertise in matters involving criminal punishment. But " '[c]onvenience and efficiency are not the primary objectives--or the hallmarks--of democratic government.' " Bowsher, 106 S.Ct. at 3194 (quoting Chadha, 462 U.S. at 944, 103 S.Ct. at 2781). Rather, convenience is the hallmark of consolidated power. Because it is more easily abused, such power poses a greater threat to liberty, here the liberty of thousands of individuals who will face substantially longer sentences under the guidelines.

Separation of powers, the architectonic principle of our federal government, provides "structural protections against abuse of power" that operate automatically and without regard to whether particular officials may actually abuse the power entrusted to them. Bowsher, 106 S.Ct. at 3191. Earlier this Term the Supreme Court reminded us that assigning a court impermissible powers in a quest for efficiency "might in another context be a bureaucratic success story, but it would be one that would have serious constitutional ramifications" and would "risk[ ] the transgression of the constitutional limitations of Article III." Morrison v. Olson, 108 S.Ct. at 2615.

The Court's approach in Morrison is highly instructive. In that case, the Court considered the constitutionality of a law that authorized court appointment of an independent counsel to investigate and prosecute certain officials of the executive branch. In upholding the law, the Court relied principally on a specific constitutional provision authorizing courts to exercise such powers, namely the appointments clause of Article II. See U.S. Const. art. II, Sec. 2, cl. 2 ("Congress may by Law vest the Appointment of such inferior Officers, as they think proper, ... in the Courts of Law"). While the Court held that the appointments clause empowered Congress to give the special division "some discretion in defining the nature and scope of the appointed official's authority," 108 S.Ct. at 2612, it carefully tailored this ancillary discretion in light of Article III's case or controversy requirement:

[W]e do not think that Congress may give the Division unlimited discretion to determine the independent counsel's jurisdiction. In order for the Division's definition of the counsel's jurisdiction to be truly 'incidental' to its power to appoint, the jurisdiction that the court decides upon must be demonstrably related to the factual circumstances that gave rise to the Attorney General's investigation and request for the appointment of the independent counsel in the particular case.

Id. at 2613 (emphasis original). Thus, even where the function in question was expressly authorized by the Constitution, the Court was careful to explain that it could not be exercised in a way that would upset the constitutional balance of power.

Morrison also approved the court's exercise of various ancillary powers that could not "be said to derive from the Division's Appointments Clause authority." Id. The Court reasoned, however, that the particular powers vested did not "impermissibly trespass upon the authority of the Executive Branch": Some were "passive," such as the duty to receive reports unaccompanied by the power to act on them; others were "essentially ministerial," not involving the power to supervise the independent counsel in the exercise of her authority. Id. The Court concluded that the powers vested were not inherently executive, but rather were "directly analogous to functions that federal judges perform in other contexts, such as deciding whether to allow disclosure of matters occurring before the grand jury, deciding to extend a grand jury investigation, or awarding attorney's fees." Id. at 2614 (citations omitted). We can draw no similar analogy in our case; Article III simply does not grant the judicial branch or the judges who comprise it any substantive rulemaking power.

The Morrison Court was troubled by the vesting in the judiciary of the power to terminate the office of independent counsel. In order to avoid "a sufficient threat of judicial intrusion into matters that are more properly within the Executive's authority" that would render the statute constitutionally infirm, the Court construed the statute so as to confine the termination power to a ministerial task that did not convey any true administrative control or executive authority. Id. at 2614-15. By contrast, as more fully discussed above, we view the functions entrusted to the Commission as quintessentially political in nature, requiring substantive, policy decisions that are intended to affect all future federal criminal defendants--a far cry from Article III's limited grant of judicial power to decide cases and controversies.

The government and the Commission would allay our constitutional concerns by suggesting that we recharacterize the Commission as part of the executive branch or as akin to an independent regulatory agency. We doubt that it would be possible to so construe the Act, in light of Congress's clearly expressed intent to locate the Commission in the judicial branch. 28 U.S.C. Sec . 991(a). In any event, this is a quibble without constitutional significance. When it comes to separation of powers, as with modern architecture, form follows function. See Bowsher, 106 S.Ct. at 3188-89, 3191-92; Chadha, 462 U.S. at 953 n. 16, 103 S.Ct. at 2785 n. 16; Glidden, 370 U.S. at 582-83, 82 S.Ct. at 1489-90 (opinion of Harlan, J.); Ameron, Inc. v. United States Army Corps of Eng'rs, 787 F.2d 875, 883 (3d Cir.) ("[i]nstead of 'decision by label,' we must focus on function and reality"), aff'd as modified, 809 F.2d 979 (3d Cir.1986),cert. granted, --- U.S. ----, 108 S.Ct. 1218, 99 L.Ed.2d 419 (1988).8 The Commission is constitutionally infirm not merely because it resides in the judicial branch, but, independently, because its principal officers include federal judges, while its function is political and not judicial in nature.9 We cannot improve on the blunt eloquence of defendants: "The doctrine of separation of powers ... appl[ies] to people, not just to entities, and under our system it is the function of judges to decide the law, not to write it, regardless of where they are located in a government organizational chart and regardless of whether they are wearing their robes." Brief of Appellant Gubiensio-Ortiz and Appellee Chavez at 56.

In a similar vein, the Justice Department argues that when judges serve outside of the judiciary, as in an executive or independent agency, they do not serve in their capacity as judges, and are therefore not subject to the usual constitutional limitations. Even if this argument were persuasive where judges serve voluntarily, it loses its force entirely where Congress sets aside seats on a commission and requires the President to fill them with federal judges. See In re President's Comm'n on Organized Crime Subpoena of Scarfo, 783 F.2d 370, 376 & n. 3 (3d Cir.1986) (upholding voluntary judicial service but suggesting that judicial service on the Sentencing Commission raises a more serious question). That judges are exercising the Commission's regulatory powers is no accident; non-judges would not be qualified to serve in those posts. Congress has assigned executive power to judges, even if they do not exercise that power as a court. The label applied cannot mask the reality that judicial officers are required by law to exercise both the judicial and executive power of the United States, thereby undermining the actual and perceived independence of the judiciary.10 See pp. 1261-63 infra.

We take it as self-evident that Congress could not reserve key positions in the executive branch, such as attorney general, secretary of defense or secretary of state, to be filled only by federal judges. Equally unconstitutional would be a provision reserving one seat on the Securities and Exchange Commission or the Federal Trade Commission to a sitting federal judge. Nor, it seems to us, could Congress circumvent the prohibition against advisory opinions by appointing a commission--consisting of federal judges or justices--to advise it on the constitutionality of proposed legislation.11 Any such legislative manipulation would, without doubt, be struck down in the name of substance over form. Similarly, the constitutionality of a congressional delegation of broad executive or legislative powers to Article III judges cannot turn on whether they are addressed as "Your Honor" or "Commissioner."

B. INTERFERENCE WITH FUNCTION

We consider next whether the Act is also constitutionally infirm because it works a substantial and unjustified interference with the operation of the judicial branch and its officers. See Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 443, 97 S.Ct. 2777, 2790, 53 L.Ed.2d 867 (1977). Interference by one branch with the operation of another branch need not be immediate and direct in order to be unconstitutional; subtle, indirect or even potential interference may be enough. Thus, in Bowsher v. Synar the Court held that a statutory provision permitting the Comptroller General to perform certain executive functions was invalid because the Comptroller General was subject to removal by Congress for "permanent disability; inefficiency; neglect of duty; malfeasance; or a felony or conduct involving moral turpitude." 31 U.S.C. Sec . 703(e)(1)(b) (1982) (subsection numbers omitted). That the congressional removal power was closely circumscribed and, as a matter of historical fact, had remained moribund, did not impress the Court. See Bowsher, 106 S.Ct. at 3189 n. 5, 3190-91; id. at 3213 (White, J., dissenting) ("of the six Comptrollers who have served since 1921, none has been threatened with, much less subjected to, removal"). The Court deemed sufficient that there was the potential for interference.

Similarly, in Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982), the Court held that the President cannot be held liable in damages for actions he has taken in his official capacity. The Court reasoned that mere "[c]ognizance of this personal vulnerability frequently could distract a President from his public duties, to the detriment of not only the President and his office but also the Nation that the Presidency was designed to serve." Id. at 753, 102 S.Ct. at 2703. The potential for liability, the Court said, unconstitutionally interfered with the President's authority and function, and a court could therefore not assert jurisdiction over the action. Id. at 754, 102 S.Ct. at 2703.

With these principles in mind, we consider first whether the Act materially interferes with the function of the judiciary and, next, whether any such interference is justified by an "overriding need" to promote constitutionally authorized congressional objectives. Nixon v. Administrator of Gen. Servs., 433 U.S. at 443, 97 S.Ct. at 2777.

1. At first blush, the Act appears to interfere little with the operation of the judiciary: The judicial ranks are diminished by only three members, and even those will not always serve on a full-time basis;12 application of the guidelines by other federal judges is not fundamentally different from application of other types of regulations. On closer inspection, however, we find that service by federal judges on the Sentencing Commission has significant collateral effects on the operation of the judicial branch, effects that may not be lightly ignored.

Because judges must act--and be perceived to act--with complete impartiality in carrying out their responsibilities, the Constitution creates a wall of separation between the judiciary and the other branches; that wall is only seldom breached. Thus, the President appoints judges with the advice and consent of the Senate, but once those judges are appointed they may be removed only by impeachment. Judicial salaries may not be lowered in order to keep the political branches from influencing, or appearing to influence, judges in the performance of their assigned functions. While the political branches retain authority to limit the jurisdiction of the federal courts and control the budget of the judiciary, judges are, by and large, left alone to perform their constitutionally assigned task of deciding cases and controversies. Most federal judges pass their judicial careers without once confronting officers of the political branches, except, of course, as litigants. And properly so: It would be wholly incompatible with the concept of an independent judiciary for federal judges to maintain a continuous involvement with the political branches of government.

By requiring that three seats on the Commission be filled by federal judges, the Act forces a continuous and fairly significant entanglement between the judicial and executive branches of government. Since the commissioners have staggered terms, the President will have the responsibility of appointing, or reappointing, judicial members of the Commission every two years.13 Appointment, or reappointment, to the Commission could be perceived as a reward to judges for service particularly pleasing to the President. While we are confident that no federal judge would be swayed by such considerations, the tens of thousands of persons who litigate against the government in civil and criminal cases may legitimately be apprehensive about the fact that the President is able to dispense plums among the federal judges who will decide their cases. As the Eleventh Circuit noted in holding judicial service on a different presidential commission unconstitutional, " '[t]he need to preserve integrity is more than just a matter of judges satisfying themselves that the environment in which they work is sufficiently free of interference to enable them to administer the law honorably and efficiently. Litigants and our citizenry in general must also be satisfied.' " In re Application of President's Comm'n on Organized Crime (Subpoena of Scaduto), 763 F.2d 1191, 1197-98 (11th Cir.1985) (quoting Hobson v. Hansen, 265 F.Supp. 902, 931 (D.D.C.1967) (Wright, J., dissenting)).

Moreover, while serving on the Sentencing Commission, judges are required to deal with the political branches on a continuing basis. The Attorney General or his designee serves as an ex officio member; the Department of Justice carefully monitors the work of the Commission and provides continuous input. See, e.g., p. 1256 supra. During the Commission's first term, the Chairman of the Parole Commission or his designee, also an executive-branch official, serves ex officio. Congress performs its oversight, informally while the Commission is deliberating, see p. 1256 supra, and formally when it reviews the guidelines in deciding whether to block or modify them during the six-month review period. SRA Sec. 235(a)(1)(B)(ii)(III), 98 Stat. at 2032. The three judges on the Commission are in the vortex of this activity.

Nor is it without significance that the President may remove Commission members "for neglect of duty or malfeasance in office or for other good cause shown." 28 U.S.C. Sec . 991(a). This is an extremely nebulous standard that gives the President virtually unfettered discretion to remove Commissioners. Cf. Bowsher, 106 S.Ct. at 3190 (similar clause authorizing removal by Congress was "very broad and, as interpreted by Congress, could sustain removal of a Comptroller General for any number of actual or perceived transgressions of the legislative will"). He might do so, for example, because he is displeased with the way a member has voted with respect to a particularly controversial issue, such as the death penalty, or, conceivably, because he is dissatisfied with the judge's ruling in a particular case.14 The possibility of such removal, as well as the other political realities, has the serious potential for influencing the votes of commissioners. This is as it should be for, as a political body performing a political function, the Commission ought to be responsive to political realities.

But the presence of three federal judges gives the Commission the luster of judicial impartiality; it suggests an objectivity and neutrality not normally associated with agencies in the political branches.15 Congress's formal designation of the Commission as "an independent commission in the judicial branch," 28 U.S.C. Sec . 991(a), enhances that aura of objectivity. Cf. H.R.Rep. No. 1017, 98th Cong., 2d Sess. 95 (1984) (recommending Judicial Conference promulgation of sentencing guidelines because Conference would "remain[ ] independent of contemporary political currents").16 In effect, then, a series of political and policy decisions have been given a judicial imprimatur; they have been ratified by the reputation and prestige of the judiciary. And herein lies the rub: While the judges retain their judicial aura, they are in fact appointed through the political process, reviewable by political means and performing political functions.

This is not, in our view, a trivial matter. Judicial prestige is not an unlimited resource; it is a fragile and finite one, easily damaged or exhausted. "[P]ublic confidence in the judiciary is indispensable to the operation of the rule of law; yet this quality is placed in risk whenever judges step outside the courtroom into the vortex of political activity. Judges should be saved 'from the entanglements, at times the partisan suspicions, so often the result of other and conflicting duties.' " Hobsen v. Hansen, 265 F.Supp. at 923 (Wright, J., dissenting) (quoting In re Richardson, 247 N.Y. 401, 420, 160 N.E. 655, 661 (1928) (Cardozo, C.J.)).17 As the Senate Judiciary Committee once concluded, "[i]t is not conducive to an independent judiciary or in keeping with public respect for the impartial dispensation of justice to place judges in a position where they may feel the pressure or influence of the executive branch." S.Exec.Rep. No. 7, 80th Cong., 1st Sess. 3 (1947), quoted in Note, Extrajudicial Activity, 22 Stan.L.Rev. at 604 n. 122.

Concern with the entanglement of the judicial and executive power of the United States is no passing phenomenon: The Framers themselves feared consolidation of such authority in the hands of individuals. Madison, quoting Montesquieu, warned that " 'were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor.' " The Federalist No. 47, at 303 (Mentor ed. 1961) (emphasis original). Hamilton reiterated that "liberty ... would have everything to fear from [the judiciary's] union with either of the other departments." The Federalist No. 78, at 466; see Note, Constitutional Infirmities, 96 Yale L.J. at 1383-84.

The aura of judicial impartiality must be conserved for the judiciary's core function, the resolution of cases or controversies. Because "confidence in the disinterestedness of [its] judicatory functions" is central to the judiciary's effectiveness, judges must remain free of external influences, and thereby be allowed to act and be perceived as acting in a neutral and impartial manner. Frankfurter, Advisory Opinions, in 1 Encyclopedia of the Social Sciences 475, 478 (1930). For this reason, political involvement by judges is severely limited.18 By requiring judicial service on the Commission, as well as by placing the Commission in the judicial branch, the Act breaches the wall of separation between the judiciary and the two political branches. It thereby threatens to squander the precious aura of judicial impartiality, to the ultimate detriment of the judiciary and the society it serves.19

2. Having concluded that judicial service on the Sentencing Commission and placement of the Commission in the judicial branch have the potential of "prevent[ing] the [judiciary] from accomplishing its constitutionally assigned functions," we next consider "whether that impact is justified by an overriding need to promote objectives within the constitutional authority of Congress." Nixon v. Administrator of Gen. Servs., 433 U.S. at 443, 97 S.Ct. at 2790.

Congress's admirable objective was to secure the contributions of individuals with expertise in sentencing and judicial administration. Congress, however, need not have required the service of sitting judges. For example, it might have called for the appointment of persons having had judicial experience, such as former or retired judges. Indeed, on several occasions, retired Justices have served in executive positions, some having left the bench to do so in order to avoid any conflict with their judicial duties.20

Moreover, Congress could well have relied on less intrusive means, such as informal input from the judiciary. Indeed, the Commission circulated the preliminary draft of the guidelines to every member of the federal judiciary, actively encouraged comments and sponsored regional hearings to receive such input. It may well be that the Commission would not have enjoyed the fulltime service of Judges MacKinnon, Breyer and Wilkins. But as Chief Justice Hughes once noted, "no man is as essential to his country's well being as is the unstained integrity of the courts." 1 M. Pusey, Charles Evans Hughes 300 (1951).21

We are not unmindful of the sporadic practice, dating from the dawn of the Republic, of having judicial officers serve in nonjudicial capacities.22 It is questionable whether the frequency of a practice can insulate it from constitutional challenge. See Chadha, 462 U.S. at 944, 103 S.Ct. 2780; Glennon, The Use of Custom in Resolving Separation of Powers Disputes, 64 B.U.L.Rev. 109, 121 (1984). In any event, such service has been the rare exception, not the rule; it is a practice that has ever been highly controversial.23 Many respected jurists refused to serve, precisely because of these concerns.24 Others served only reluctantly,25 and still others served and then regretted it.26 Indeed, the Chief Justice raised the issue when faced with the obligation to nominate judges for service on the Commission. See Letter from Chief Justice Warren E. Burger to President Ronald W. Reagan (Dec. 13, 1984) (ER at 38) ("there is a serious question of the constitutionality of an Article III judge in active service undertaking a 'full-time' Executive Branch appointment to an independent commission").

Until quite recently, these instances of judicial service were not challenged, and indeed were probably unchallengeable for lack of anyone with standing to do so. In two recent cases where such judicial service has been challenged, courts have come to opposite conclusions. Compare In re President's Comm'n on Organized Crime (Subpoena of Scarfo), 783 F.2d 370 (3d Cir.1986) (allowing judicial service) with In re Application of President's Comm'n on Organized Crime (Subpoena of Scaduto), 763 F.2d 1191 (11th Cir.1985) (judicial service unconstitutional because it impairs function of judiciary).

In any event, we need not completely disown our tradition of extrajudicial service by judicial officers to conclude that the judicial entanglement with the political branches is unconstitutional here. Distinctive in the Sentencing Reform Act is the requirement that judges serve as members of the Commission. This requirement of judicial participation greatly heightens the dangers we perceive. In the first place, placement of the Commission in the judicial branch as well as continuous and mandatory judicial participation gives the Commission a far more pronounced judicial aura than occasional appointment of a judge to a commission at the President's pleasure.

Moreover, we cannot view the Sentencing Commission in isolation; the principle it establishes is hard to contain. Legislators interested in bringing judicial expertise to bear on a variety of problems may be tempted to place judges on any number of commissions. It would be difficult to say that service by three judges on single commission is permissible but service by many judges on dozens of commissions is not. Yet, it would surely change the public perception of the judicial branch if large numbers of judges devoted a substantial portion of their skills and talents to political endeavors. See also note 21 supra. We can prevent undue entanglement by the judiciary in the operation of the political branches only by adopting a clear-cut, prophylactic rule: Congress may not, under our system of separated powers, require judges to serve on bodies that make political decisions.27

III

Having found the provisions of the Sentencing Reform Act establishing the Sentencing Commission and authorizing the promulgation of the guidelines to be unconstitutional, we must now decide whether the provisions of the Act substantially curtailing good time credits are severable, or whether they must be invalidated as well.

Prior to November 1, 1987, federal law provided for a complex system of meritorious and industrial good time credits. Meritorious good time credits of up to five days for each month served could be awarded prisoners whose sentences ranged from six months to a year; at the far end, ten days a month could be awarded to prisoners sentenced to ten years or more. 18 U.S.C. Sec . 4161 (1982). In addition, industrial credits of up to three days a month could be awarded for the first year, and five days a month for succeeding years. 18 U.S.C. Sec . 4162 (1982).

The Sentencing Reform Act repealed these provisions, providing for a maximum good time credit of 54 days a year after the first year of imprisonment, and eliminating credits altogether for sentences of one year or less. 18 U.S.C. Sec . 3624(b) (Supp. IV 1986). Faithful to the Act, the Bureau of Prisons denied Gubiensio, who is serving a six-month sentence, any good time credits. He now seeks restoration of the credits he would have earned under pre-SRA law.

As the Supreme Court stated last Term,

[t]he standard for determining the severability of an unconstitutional provision is well established: " 'Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.' " Buckley v. Valeo, 424 U.S. 1, 108, 96 S.Ct. 612, 677, 46 L.Ed.2d 659 (1976) (per curiam), quoting Champlin Refining Co. v. Corporation Comm'm of Oklahoma, 286 U.S. 210, 234, 52 S.Ct. 559, 565, 76 L.Ed. 1062 (1932).

Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 107 S.Ct. 1476, 1480, 94 L.Ed.2d 661 (1987). The lodestar of severability is legislative intent. Regan v. Time, Inc., 468 U.S. 641, 653, 104 S.Ct. 3262, 3269, 82 L.Ed.2d 487 (1984) (plurality opinion). The "relevant inquiry in evaluating severability is whether the statute will function in a manner consistent with the intent of Congress." Alaska Airlines, 107 S.Ct. at 1481 (emphasis original).

A. Our point of departure is the language of the statute. The Act does not contain any severability clause. Although the absence of such a clause does not raise a presumption of nonseverability, see Alaska Airlines, 107 S.Ct. at 1481, it does suggest that Congress intended to have the various components of the sentencing reform package operate together or not at all.

The statutory scheme supports this inference. Congress specified that the abolition of parole and new good time rules would apply only to sentences imposed under the guidelines. 18 U.S.C. Secs . 3551, 3558, 3624 (Supp. IV 1986). As the Senate Report noted, "the sentencing guidelines system will not replace the current law provisions relating to the imposition of sentence, the determination of a prison release date, and the calculation of good time allowance" until the guidelines "replace the existing sentencing system." S.Rep. No. 225, at 188-89, 1984 U.S.Code Cong. & Admin.News at 3371-72. Moreover, when it became clear that the guidelines would not be completed by the originally scheduled effective date, Congress delayed implementation of the good time and parole provisions until the guidelines were completed. See Sentencing Reform Amendments Act of 1985, Pub.L. No. 99-217, Secs. 2, 4, 99 Stat. 1728 (1985).28 Congressional efforts to dovetail the reforms pertaining to good time credits and parole with the implementation of the guidelines are a compelling indication that the pre-SRA parole and good time credit provisions were not meant to apply to sentences imposed under the Act.

We find further support for our interpretation of congressional intent in the legislative history of the Act. Congress's overriding goal was to eliminate the gross disparities in sentencing resulting from the great discretion it had previously accorded to judges, the Bureau of Prisons and the Parole Commission, which often worked at cross purposes in determining an individual prisoner's actual term of incarceration. Congress therefore sought to implement a "comprehensive plan" to eliminate excess discretion on all three levels, so that "[a] sentence imposed by a judge ... will represent the actual period of time that the defendant will spend in prison, except that a prisoner, after serving one year of his term of imprisonment, may receive credit ... toward service of his sentence if he satisfactorily complies with the institution's rules." S.Rep. No. 225, at 46, 115, 1984 U.S.Code Cong. & Admin.News at 3229, 3298. Congress having chosen a "comprehensive" approach to making sentencing more determinate, we will not sever companion sections of the guidelines system that would introduce piecemeal reforms.

B. The government argues that even if Congress did not intend the guidelines to be severable in 1984, it changed its mind when it amended the Act in 1987. As originally passed, the Act required guidelines for all offenses, see 28 U.S.C. Sec . 994 (Supp. III 1985), and the Sentencing Commission promulgated guidelines for many petty offenses. It became apparent, however, that no purpose would be served by developing guidelines for offenses carrying maximum sentences of six months or less, because the Act required that there be at least a six-month difference between the maximum and minimum permissible sentences for each offense. As a result, Congress eliminated the requirement that the Commission promulgate guidelines for such petty offenses, and provided that for this limited category of crimes sentencing courts need neither follow any specific guideline nor consult guidelines for similar offenses. Sentencing Act of 1987, Pub.L. No. 100-182, Sec. 16, 101 Stat. 1266, 1269; see 28 U.S.C.A. Sec. 994(w) (West Supp.1988); 18 U.S.C.A. Sec. 3553(b) (West Supp.1988). Accordingly, effective January 15, 1988, the Sentencing Commission amended Guideline Sec. 2L1.2, which covers illegal entry into the United States, to make it inapplicable to first offenses. Sentencing Guidelines Manual at 2.102 (Jan. 15, 1988). There was therefore no guideline covering the crime for which Gubiensio was convicted.

It is not entirely clear what inference the government would have us draw from Congress's limited fine-tuning of the Act in 1987. It is quite a stretch to view the 1987 amendments as making any general statement on the relationship between good time credits and the guidelines; indeed, the amendments had nothing to do with the credit provisions. The government's argument seeks to prove too much on the basis of too little. We reject it.

Conclusion

The judgment of the district court in No. 88-5109 holding the sentencing guidelines unconstitutional is AFFIRMED. The judgment of the district court in No. 88-5848 denying the petition for habeas corpus is REVERSED and the case is remanded for proceedings consistent with this opinion.

WIGGINS, Circuit Judge, dissenting.

I dissent because I believe that the Sentencing Guidelines withstand all constitutional challenges. I also believe that if the Guidelines are found unconstitutional, the "good time" credit provisions are severable from the infirm sections of the Sentencing Reform Act.1

This is a case about power: the power and authority the Constitution grants to our three branches of government. I agree that any question of the Sentencing Commission's placement in the judicial branch must recognize function over form. But a functional approach to a separation of powers inquiry demands a determination whether an allocation of authority to one branch compromises the constitutionally mandated role of all the branches. The majority is content, I believe, with finding that the participation of three article III judges on the Commission compromises their status as federal judges, and thus renders the Commission's work infirm. For reasons explained below, I reject this conclusion. More importantly, I believe that it answers the wrong question in the wrong order. While the majority exalts function, they have forgotten form, that is, the essential structure of a separation of powers analysis.

The inquiry I adopt is straight-forward. First, I ask what power is being assigned by Congress in the Sentencing Reform Act (the "Act"), and whether the power is properly within Congress' domain. I believe that the power to prescribe sentences for violations of the laws of the United States is assuredly within the congressional mandate. Next, I determine whether Congress properly gave the power to another entity, the Sentencing Commission (the "Commission"), irrespective of that entity's particular placement in the scheme of government. This is the issue of delegation. I believe that Congress properly delegated the job of devising determinate sentencing guidelines to the Commission.

These questions are significant because they provide answers that directly inform the next inquiry: whether the Commission was properly placed in the judicial branch. I begin with the essential premise that the Constitution itself requires that we presume Congress' allocation of power to another branch is lawful. The Framers would not have permitted the powers of the federal government, limited as they were, to go unexercised for lack of an authority to assign them, where necessary. That authority is vested in Congress. There are, however, limits to that prerogative, and limits to our deferrence of Congress' authority to allocate.

The first limit is that Congress may not assign a power it had no right to exercise itself, such as one granted to the states, or to the people in the form of an essential guaranty or freedom. This is nothing more than a restatement of the first question: whether sentencing is properly within Congress' domain. Next, I ask whether another explicit constitutional provision demands an alternate allocation, that is, whether the constitution itself has removed certain discretion from Congress to assign functions to another branch. I believe there is no such alternate allocation in this case. Finally, I consider whether the allocation of power constitutes a genuine threat to the ability of any branch to carry out its constitutionally assigned duties. I will consider, in turn, the impact of the Commission's placement in the judicial branch on Congress, the Executive, and the judiciary itself. I believe that no branch's work is compromised by the Act and that Congress' decision satisfies every step of this most demanding, yet sensible, inquiry.

A. Congressional Power to Issue Mandatory Sentencing Guidelines

Before one can determine whether any delegation to the Commission was proper, it must be decided whether it was in Congress' power to issue mandatory sentencing guidelines. It is an article of faith that Congress does indeed have power to establish, if it so desires, mandatory and precise sentences for crimes. See Ex Parte United States, 242 U.S. 27, 42, 37 S.Ct. 72, 74, 61 L.Ed. 129 (1916) (it is indisputable "that the authority to define and fix the punishment for crime is legislative and includes the right in advance to bring within judicial discretion, for the purpose of executing the statute, elements of consideration which would be otherwise beyond the scope of judicial authority, and that the right to relieve from the punishment, fixed by law and ascertained according to the methods by it provided, belongs to the executive department."); United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95, 5 L.Ed. 37 (1820). Indeed, judges in the early days of the Republic had no broadranging authority to define varying sentences. United States v. Grayson, 438 U.S. 41, 45, 98 S.Ct. 2610, 2613, 57 L.Ed.2d 582 (1978). The practice of Congress prescribing wide sentence ranges, with judges setting precise sentences, evolved later.

Consequently, there is no due process right to individualized sentencing. The Supreme Court has held that "the prevailing practice of individualizing sentencing determinations generally reflects simply enlightened policy rather than a constitutional imperative" in non-death penalty cases. Woodson v. North Carolina, 428 U.S. 280 , 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976). Courts that have considered due process challenges to mandatory sentence statutes have uniformly rejected them. See Spencer v. Texas, 385 U.S. 554, 559-60, 87 S.Ct. 648, 651-52, 17 L.Ed.2d 606 (1967) (upholding recidivist mandatory sentencing); United States v. Smith, 818 F.2d 687, 691 (9th Cir.1987). It was, therefore, completely within Congress' power to establish mandatory sentencing guidelines.B. Proper Delegation to the Commission

Having established that Congress had the power to issue mandatory sentencing guidelines, it must be determined whether Congress properly delegated these duties to the Commission.

1. The Test of Nondelegability

Article I of the Constitution provides that "[a]ll legislative powers ... shall be vested in the Congress of the United States." U.S. Const. art. I, Sec. 1. The nondelegation doctrine embodies the notion that the "[f]ormulation of policy is a legislature's primary responsibility, entrusted to it by the electorate...." United States v. Robel, 389 U.S. 258, 276, 88 S.Ct. 419, 430, 19 L.Ed.2d 508 (1967) (Brennan, J., concurring). As the Supreme Court stated in Field v. Clark, 143 U.S. 649, 12 S.Ct. 495, 36 L.Ed. 294 (1892), "[t]hat Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution." Id. at 692, 12 S.Ct. at 504.

Whether a congressional delegation violates this doctrine does not, however, depend on whether the power delegated falls within the "core functions" of the legislature. This per se theory of nondelegability derives from Chief Justice Marshall's dictum in Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 6 L.Ed. 253 (1825) that

[t]he line has not been exactly drawn which separates those important subjects, which must be entirely regulated by the legislature itself, from those of less interest, in which a general provision may be made, and power given to those who are to act under such general provisions, to fill up the details.

Id. at 43. This "core functions" argument has, however, been repudiated in later Supreme Court jurisprudence. See Lichter v. United States, 334 U.S. 742, 778, 68 S.Ct. 1294, 1313, 92 L.Ed. 1694 (1948) ("A constitutional power implies a power of delegation of authority under it sufficient to effect its purposes."). Moreover, judicial adoption of a "core functions" analysis would "be effectively standardless." Synar v. United States, 626 F.Supp. 1374, 1385 (D.D.C.), aff'd sub nom. Bowsher v. Synar, 478 U.S. 714, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986). And even if a "core functions" analysis were adopted in this case, it is doubtful whether the determination of criminal penalties and sentencing would be a core legislative function. See, e.g., United States v. Grimaud, 220 U.S. 506, 31 S.Ct. 480, 55 L.Ed. 563 (1911) (upholding delegation to Secretary of Agriculture to regulate use of forests with criminal sanctions); United States v. Daniel, 813 F.2d 661, 662-63 (5th Cir.1987) (upholding scheduling of controlled substances); United States v. Davis, 564 F.2d 840, 843-44 (9th Cir.1977), cert. denied, 434 U.S. 1015 , 98 S.Ct. 733, 54 L.Ed.2d 760 (1978) (same).

Nor is it a requisite for proper delegation that it be supported by some rigorous "principle of necessity." Although the Supreme Court has occasionally recognized the "necessity" for a delegation, see e.g., Buttfield v. Stranahan, 192 U.S. 470, 496, 24 S.Ct. 349, 355, 48 L.Ed. 525 (1904), it is doubtful whether that word means anything more than the word "necessary" in the "necessary and proper" clause of the Constitution. U.S. Const. art. I, Sec. 8, cl. 18; see McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 413-15, 4 L.Ed. 579 (1819) (rejecting theory that "necessary and proper" means "absolute physical necessity"). In any case, while "necessity" has been noted by the Supreme Court in upholding a delegation, "lack of necessity" has never been invoked to strike one down. This per se theory of nondelegation must also fail.

These per se theories of nondelegability aside, the classic exposition of the doctrine was in J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 48 S.Ct. 348, 72 L.Ed. 624 (1928), where Chief Justice Taft wrote that so long as Congress "lay[s] down by legislative act an intelligible principle to which the person or body authorized to [exercise delegated authority] is directed to conform, such legislative action is not a forbidden delegation of legislative power." Id. at 409, 48 S.Ct. at 352. Under this test, only two statutes have been declared unconstitutional by reason of undue delegation. Both involved portions of the controversial National Industrial Recovery Act of 1933. See A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570 (1935) (invalidating a statute that permitted members of an industry to propose, and the President to approve, "codes of fair competition" where Congress had neglected to define "fair competition"); Panama Refining Co. v. Ryan, 293 U.S. 388 , 55 S.Ct. 241, 79 L.Ed. 446 (1935) (invalidating statute which failed to set forth any policy or rules to guide state officials in their determination of what production or shipping of petroleum products should be permitted). In the fifty years since these two cases, courts have always rejected delegation challenges. See Synar, 626 F.Supp. at 1383 n. 9 (citing all recent cases where delegation challenges have been rejected).

2. Applying the Test

When the J.W. Hampton test for nondelegability is applied to the mandate given to the Sentencing Commission, it is manifest that Congress offered an "intelligible principle" and substantial guidance for its work.2 Indeed, compared with the numerous other very broad legislative delegations that have withstood judicial scrutiny, the provisions in the Sentencing Reform Act appear almost constricting. See e.g., Lichter, 334 U.S. at 785-86, 68 S.Ct. at 1316-17 (delegating enactment of standards "permitting recovery of excessive profits"); Federal Power Comm'n v. Hope Natural Gas Co., 320 U.S. 591, 600, 64 S.Ct. 281, 287, 88 L.Ed. 333 (1944) (permitting Commission to fix "just and reasonable" rates for natural gas); National Broadcasting Co. v. United States, 319 U.S. 190, 225-26, 63 S.Ct. 997, 1013-14, 87 L.Ed. 1344 (1943) (permitting licensing of radio communications "as public interest, convenience, or necessity [requires]"); see also 28 U.S.C. Sec . 994(b)(1) (requiring that Commission's sentencing guidelines be consistent with Criminal Code).

Defendants maintain, however, that the mandatory character of the guidelines compel a finding of nondelegability. See Comment, The Constitutional Infirmities of the United States Sentencing Commission, 96 Yale L.J. 1363, 1375 (1987) ("Only if the standards for departure [from the guidelines] and appellate review are stretched to make the guidelines into presumptive recommendations can the nondelegation challenge be met.") [hereinafter "Yale Comment"]. Whether the guidelines are mandatory has no effect on Congress' delegation. Congress often delegates authority for mandatory laws and regulations. See National Cable Television Ass'n v. United States, 415 U.S. 336, 342, 94 S.Ct. 1146, 1149-50, 39 L.Ed.2d 370 (1974). Defendants also suggest that Congress left too many policy determinations to the Commission. These included whether a conviction-based or real offense system would be used to determine the seriousness of the offense, the weight given to the seven relevant factors concerning the character of the offense, whether a fine should be imposed and probation allowed, whether confinement could be served other than in a prison, and whether plea bargaining should be permitted in the future. Most importantly, the Commission was required to decide the absolute base level for each crime, which reflected not only the Commissioners' belief of the seriousness of the offense, but also established the lowest end of the sentencing parameters. Finally, it was left to the Commission to decide whether to establish sentencing procedures that would permit the reinstatement of the death penalty. See Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (absence of adequate statutory standards precluded the imposition of the death penalty provisions that remained in the Federal Criminal Code). Obviously, defendants do not challenge whether the Commission made the right choices concerning these policy questions. Instead, they argue that because these decisions were left to the discretion of the Commission it violated the delegation doctrine.

It is true, as the district court noted, that "defendants point out several areas where Congress could have given more guidance to the Commission than it did. That is not the test, however." Arnold, 678 F.Supp. at 1468. "It is not necessary that Congress supply ... a specific formula ... in a field where flexibility and the adaptation of the congressional policy to infinitely variable conditions constitute the essence of the program." Lichter, 334 U.S. at 785, 68 S.Ct. at 1316. On balance, I believe that Congress provided substantial and detailed guidance for the Commission. Congress specified that a double-matrix system be used, 28 U.S.C. Sec . 994(b)(1), and detailed the factors to be considered in sentencing. Id. Secs. 994(c), (d). Congress required that the Commission establish policies and practices that conformed with the purposes of sentencing, including deterrence, public protection, rehabilitation, and punishment commensurate with the seriousness of the crime. Id. Sec. 991(b)(1)(A); 18 U.S.C. Sec . 3553(a)(2). Congress demanded the imposition of maximum or substantial terms for specified defendants and offenses, 28 U.S.C. Sec . 994(h), (i), while also requiring the Commission to take care not to increase prison over-crowding. Id. Sec. 994(g). The guidance given to the Commission by Congress satisfies the requirements of the delegation doctrine. The Sentencing Reform Act did not constitute an invalid delegation of legislative power.

C. Separation of Powers Violations

The district court held that the placement of the Sentencing Commission in the judicial branch violated the separation of powers doctrine. The majority agrees with this conclusion. To consider this challenge a court must decide whether that placement created a genuine threat to the ability of any branch of the government to carry out its constitutionally assigned duties.3

It is "a general rule inherent in the American constitutional system, that, unless otherwise expressly provided or incidental to the powers conferred, the legislature cannot exercise either executive or judicial power; the executive cannot exercise either legislative or judicial power; the judiciary cannot exercise either executive or legislative power." Springer v. Government of the Philippine Islands, 277 U.S. 189, 201-02, 48 S.Ct. 480, 482, 72 L.Ed. 845 (1928). This does not mean, of course, that the three branches of government are hermetically sealed. Buckley v. Valeo, 424 U.S. 1, 121, 96 S.Ct. 612, 683, 46 L.Ed.2d 659 (1976). The declared purpose of separating and dividing the powers of government was to "diffus[e] power the better to secure liberty." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635, 72 S.Ct. 863, 870, 96 L.Ed. 1153 (1952) (Jackson, J., concurring) (echoing the famous warning of Montesquieu in Esprit de Lois, quoted by James Madison in The Federalist No. 47, that " 'there can be no liberty, where the legislative and executive powers are united in the same person, or body of magistrates' ..." (The Federalist No. 47, at 325 (J. Cooke ed. 1961))).

I believe that the essential question for consideration here is whether Congress' decision to assign the Commission as an independent agency within the judicial branch compromises the constitutionally mandated functions, prerogatives, and roles of the legislature, the executive, or the judiciary itself. We should be mindful, of course, that congressional enactments are presumed constitutional. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 4 L.Ed. 579 (1819). In addition, the Constitution itself affords the Congress the power to make the necessary allocation of authority needed to effectuate the powers of the federal government. The Constitution provides that Congress shall "make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." U.S. Const. art. I, Sec. 8, cl. 18; see generally, Van Alstyne, The Role of Congress in Determining Incidental Powers of the President and of the Federal Courts: A Comment on the Horizontal Effect of the Sweeping Clause, 36 Ohio St.L.J. 788 (1975). This means that Congress has the power to determine what is "necessary and proper" for carrying out its own functions, Ex Parte Curtis, 106 U.S. 371, 372, 1 S.Ct. 381, 383, 27 L.Ed. 232 (1882), as well as for executing the duties of the other branches of government. See, e.g., Fong Yue Ting v. United States,